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On Monday, several Supreme Court justices questioned the legality of a final attempt by the outgoing Trump administration to exclude undocumented immigrants from the federal tally used to allocate state seats in Congress and the Electoral College.
The conservative-leaning High Court heard more than 80 minutes of oral argument on court challenges against President Trump’s efforts to deport immigrants living in the United States without permission from the decennial census that dictates the redistribution of the House of Representatives.
“Much of the historical evidence and long-standing practice really goes against your position,” most recent Judicial Justice Amy Coney Barrett told government counsel supporting the case. administration.
The US government has historically counted most of the country’s residents, including non-citizens without legal status, for the purposes of the allocation of seats in Congress. The 14th Amendment requires that House seats be allocated after the government counts “the total number of people in each state.” The constitutional process takes place every 10 years after the census.
In July, arguing that “people” were not strictly defined in the 14th Amendment, Mr. Trump said US policy would be to exclude immigrants who do not have “legal immigration status” from the calculations. which determine how many house districts each state should have. His presidential directive tasked Commerce Secretary Wilbur Ross, who administers the Census Bureau, to provide him with information following the 2020 census that would allow him to do so.
Judge Stephen Breyer, a liberal who was appointed by Democratic President Bill Clinton, on Monday called the legal argument that undocumented immigrants should be counted for distribution in Congress as “strong enough.”
“These are people, aren’t they? Breyer asked Acting Solicitor General Jeff Wall, the lawyer representing the Trump administration in the trial, known as Trump v. New York.
Barrett, who is Mr Trump’s third High Court appointment, reminded Wall of the unprecedented nature of the change sought by the administration and set the example of an undocumented immigrant who has lived in the United States since 20 years. “Why … would such a person not have a permanent residence here?” she asked Wall.
Wall responded by saying that the United States had previously excluded foreign diplomats living in the country on a long-term basis from the pay-as-you-go tally. “I’m not at all disputing that illegal aliens form bonds with the community in the sense you are talking about, but these are not the kind of bonds that are enough to qualify you within the allocation base,” said he declared.
Judge Sonia Sotomayor, appointed by President Barack Obama in 2009, said immigrants detained by U.S. Immigration and Customs Enforcement (ICE) – who the Trump administration said would likely be excluded from the payout count under his proposal – could be eligible the country through asylum or other forms of immigration assistance.
“I don’t know how you can identify an immigrant class that doesn’t live here in its traditional sense,” Sotomayor told Wall. “This is where they are.”
Members of the conservative majority and the liberal wing of the High Court have pressed Wall on the practical feasibility of the Trump administration in excluding the country’s roughly 11 million undocumented immigrants from the redistribution tally. The Commerce Department has a deadline of December 31 to provide the president with a table of the population of each state. The president is then required by federal law to submit a declaration to Congress that would be used to redraw the districts of the House.
Judge Samuel Alito, appointed to the bench by Republican President George W. Bush, called it a “monumental task.”
Asked by Alito, Wall admitted that it was “highly unlikely” that the Census Bureau would be able to identify and remove all unauthorized immigrants from the allocation calculations.
Three federal courts have already ruled against Mr. Trump’s planned changes to the census. In September, a three-member panel of federal judges in New York City said the proposal violated federal laws that govern congressional seat redistribution and census counting, but without weighing on its constitutionality.
Last week, however, another panel of federal judges in Washington, DC dismissed a fourth challenge against Mr. Trump’s efforts, saying the case was not yet “ripe for consideration” given the uncertainty. surrounding undocumented immigrants who would be removed from the redistribution count.
Several Tory justices, including Justice Brett Kavanaugh, Mr. Trump’s second Supreme Court appointment, weighed on Monday the possibility that the high court would adopt a similar approach and ruling after the administration decided which immigrants to exclude.
“The key point, I think, is that [Mr. Trump’s] The memorandum does not impose any obligation on complainants to do anything at this point, unlike a typical agency settlement, “Kavanaugh said.” We call this a lack of maturity. “
If Mr. Trump’s plan is implemented, California, Texas and Florida, states with large immigrant communities, could end up with one less house district than they say they would have been. current calculations, according to an analysis by non-partisan Pew Research. Center. Conversely, some states like Alabama and Ohio with fewer undocumented residents would gain a seat in Congress than they otherwise would not have.
The Justice Department has argued that the impact of Mr. Trump’s proposal on some states likely to lose or gain seats in the House is unclear, as it has not yet determined the categories of ‘immigrants to be excluded from the distribution figures. The number of detainees at ICE, the population Mr. Trump is most likely to exclude, stands at 16,075, according to government figures.
However, Justice Elena Kagan, a person appointed by Mr. Obama, noted that the government also had records of hundreds of thousands of immigrants who have been subject to final deportation orders or are in the process of being removed. and over 640,000 beneficiaries of Obama-era Deferred Action for Children. Arrivals program. While DACA offers work permits and protection against deportation, it does not legalize the status of its recipients, who remain undocumented.
Republican-appointed Chief Justice John Roberts said in his opening questioning that if the court does not intervene now before the Commerce Department passes information on the state’s population to the president, ” I don’t know when the court could intervene “.
Wall said lawsuits could be brought after Mr. Trump determines who will be excluded from the redistribution numbers and sends his report to the House of Representatives.
“Isn’t that going to be like having to decipher the eggs?” Roberts asked.
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